Rice v. Moorehouse

• Decision Date: 02 January 1890
• Citation: 150 Mass. 482,23 N.E. 229
• Parties: RICE v. MOOREHOUSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 482

23 N.E. 229

RICE v. MOOREHOUSE.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1890

January 2, 1890

HEADNOTES

COUNSEL

Stone & Armstrong, for plaintiff.

H.N Allin and G.L. Mayberry, for defendant.

OPINION

DEVENS J.

The defendant had been sued under chapter 348, St.1887, for maintaining unnecessarily a fence over 6 feet in height, for the purpose of annoying the plaintiff. At some time previous to the trial, but after action brought, the defendant cut down the fence from 16 to 71/2 feet in height. At the trial the jury were instructed that they must be satisfied that for some time after the passage of the statute and the bringing of the action the defendant had maliciously maintained this fence, solely or mainly for the purpose of annoying the plaintiff; that any evidence as to the defendant's conduct at other times was only competent as it might have a tendency to show her purpose during this time; and that her intent in erecting or maintaining the fence at other times was not an issue for the jury. To these instructions no exception was taken; and, the jury having found for the plaintiff, a motion was made by plaintiff for judgment that the fence be abated. The defendant contended that the court had no authority to order an abatement; but the presiding judge decided otherwise, ruled that he had authority, under the statute, to order judgment for an abatement of so much of the fence as exceeded 6 feet in height, and ordered judgment accordingly. To this ruling and order the defendant excepted. That, if this order of the court was one within its discretion, no exception would lie thereto, will hardly be controverted. Codman v. Evans, 7 Allen, 431. The contention of the defendant is that the only fence which has been adjudged a nuisance is one much higher than 71/2 feet; that there was no adjudication that the fence, as it existed when the order of abatement was passed, was a nuisance; that the court had no discretion in regard to the subject, and therefore such order was erroneously made. The provisions of chapter 180, Pub.St concerning actions for private nuisances, are made applicable to cases arising under chapter 348, St.1887. The first section of this chapter authorizes the court, when the plaintiff has prevailed in an action for a nuisance, besides the costs and damages, to enter judgment that the nuisance be abated and removed. The third section of the...